The Eleventh Circuit’s recent ruling backing Home Depot’s defeat of a suit from workers who showed their 401(k) plan was mismanaged, but couldn’t tie those lapses to financial losses, adds to a growing circuit split that attorneys say warrants guidance from the U.S. Supreme Court.
A three-judge panel’s decision Aug. 2 affirmed the home improvement retailer’s summary judgment win in Georgia federal court in plan participants’ suit alleging that excessive fees and subpar investments in their retirement plan violated the Employee Retirement Income Security Act.
The decision adds to a split between circuit courts on the question of which party must prove loss causation to prevail on ERISA claims of retirement plan mismanagement. The Eleventh Circuit joined the Tenth Circuit in specifically rejecting retirees’ theory that the burden of proving loss causation should shift to the employer if plaintiffs can show a fiduciary breach and that the plan suffered a loss.
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Many plaintiff-side attorneys said they disagreed with the decision, including Kai Richter, of counsel at Cohen Milstein Sellers & Toll PLLC.
“Why should a breaching fiduciary get the benefit of the doubt?” Richter said. “It’s not equitable, it’s not consistent with trust law, it’s not consistent with the Department of Labor’s view as an industry expert and it’s not consistent with the opinions that have been reached in many circuits, including the First Circuit in the Putnam case that I litigated.”
A Missouri federal judge granted preliminary approval for a $250 million class action settlement to end an antitrust suit filed by home sellers who accused the National Association of Realtors, HomeServices of America Inc. and other companies of conspiring to artificially inflate broker commission fees.
In his Thursday order, U.S. District Judge Stephen R. Bough also certified the class and scheduled a final approval hearing for Nov. 26. The class’ $250 million settlement with HomeServices of America, its subsidiary Long & Foster Cos. Inc. and HomeServices of America affiliates BHH Affiliates LLC and HSF Affiliates LLC was reached in April.
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The certified class is represented by Benjamin H. Fadler, Michael S. Ketchmark, Scott A. McCreight of Ketchmark & McCreight PC, Karl Barth, Rio Pierce and Steve W. Berman of Hagens Berman Sobol Shapiro LLP, Beatrice Franklin and Marc M. Seltzer of Susman Godfrey LLP, Benjamin D. Brown and Robert A. Braun of Cohen Milstein Sellers & Toll PLLC, Eric L. Dirks and Matthew L. Dameron of Williams Dirks Dameron LLC, and Jeremy M. Suhr and Brandon J.B. Boulware of Boulware Law LLC.
A New York federal judge on Friday recommended certifying two classes of direct purchasers and end payors in consolidated antitrust actions accusing Takeda Pharmaceuticals Co. of unlawfully inflating the price of its diabetes treatment Actos by delaying entry of generic alternatives.
U.S. Magistrate Judge Stewart D. Aaron’s report and recommendation said both groups’ motions for class certification should be granted, finding that they raise common questions of antitrust injury that are capable of classwide resolution, and that questions of law or fact common to class members predominate over questions only affecting individuals.
For instance, the end payor plaintiffs, such as employee health care benefit plans and direct payer wholesalers, claim that Takeda’s improper representation of its patents to the U.S. Food and Drug Administration delayed generics from entering the market for the drug, forcing them to pay inflated prices for the diabetes treatment, the report said.
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The end payors are represented by Hilliard & Shadowen LLP, Miller Shah LLP, Wexler Boley & Elgersma LLP, Motley Rice LLC and Cohen Milstein Sellers & Toll PLLC.
A Chicago federal judge on Wednesday substantially trimmed a derivative suit accusing Abbott Laboratories leaders of concealing known safety issues related to recalled infant formula but rejected the defendants’ argument that tossing the suit in its entirety was in shareholders’ “best interest.”
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Carol Gilden of Cohen Milstein Sellers & Toll PLLC, a co-lead counsel for the investors, said in a statement to Law360 that they are “very pleased with the court’s decision, allowing our shareholder derivative lawsuit against Abbott Laboratories’ board of directors to move forward.”
“Their handling of the FDA’s concerns over contaminated baby formula led to a national crisis, impacting families and badly damaging Abbott and the company’s reputation,” Gilden said. “We look forward to holding them accountable.”
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The investors are represented by Geoffrey M. Johnson, Jing-Li Yu, Tyler C. Yagman and Joseph A. Pettigrew of Scott + Scott Attorneys at Law LLP and Carol V. Gilden, Richard Speirs, Amy Miller, Steven J. Toll and Molly Bowen of Cohen Milstein Sellers & Toll PLLC.
The Ninth Circuit refused Thursday to rethink a split panel decision affirming certification of a damages class of potentially millions of advertisers who were allegedly deceived about Facebook’s “potential reach” tool, rejecting Meta Platforms Inc.’s warnings of unchecked fraud class actions.
According to the one-page order, U.S. Circuit Judges J. Clifford Wallace and Sidney R. Thomas voted against panel rehearing, while U.S. Circuit Judge Danielle J. Forrest supported taking another look, the divide lining up with the panel’s split March decision.
“The full court has been advised of Meta’s petition for rehearing en banc, and no judge of the court has requested a vote on the petition for rehearing en banc,” the appellate court said in denying the petition for panel or full court reconsideration.
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The advertisers are represented by Geoffrey Graber, Andrew N. Friedman, Karina G. Puttieva, Madelyn Petersen and Eric A. Kafka of Cohen Milstein Sellers & Toll PLLC, and Charles Reichmann.
Each year, Public Justice is proud to present its Trial Lawyer of the Year Award to the trial attorney or legal team who made the greatest contribution to the public interest within the past year by trying or settling a socially significant case. This year’s winner is the legal team for John Doe I v. Exxon Mobil Corp. The award was given at the 42nd annual Public Justice Gala and Awards Dinner, held on July 22, 2024.
“On behalf of our entire team, thank you. It is an honor to be recognized for our work by Public Justice, especially in light of the other outstanding nominees. This award is really a testament to the bravery of our clients,” said Agnieszka Fryszman, lead counsel for the plaintiffs and chair of Cohen Milstein’s Human Rights practice. “Eleven villagers from a rural community in Indonesia bravely took on one of the largest and most powerful corporations in the world and stuck with the fight for more than twenty years. We are so pleased that we were able to secure a measure of justice for them and their families.
Fryszman continued, “This case is also an important victory for the principle of access to justice. It demonstrates that U.S. courts can successfully manage and resolve even complex international human rights cases and that our courts should continue to provide a forum for these meritorious claims.”
After 22 years of litigation, a small but tenacious band of litigators led by Agnieszka Fryszman of Cohen Milstein Sellers & Toll PLLC succeeded in holding the massive multinational corporation Exxon Mobil (“Exxon”) accountable for atrocities committed by its contractors while it turned a blind eye for the sake of profits. The case exposed horrific human rights abuses, including sexual assault, torture, kidnapping, and murder committed by Exxon contractors in a rural Indonesian village, and is a shining example for how foreign tort law can be used to hold multinational abusers to account in U.S. courts.
In 2001, 11 villagers filed a lawsuit in U.S. federal court alleging that Exxon contracted with Indonesian soldiers to guard its operations in rural Aceh, Indonesia, and that those soldiers abused their power for years, inflicting horrific abuses on the villagers and their families. Plaintiffs saw family members shot to death, a woman who was forced to jump up and down repeatedly while eight months pregnant and was then sexually assaulted, and men were detained and subjected to electric shocks, amputation of limbs, and other torture at facilities within Exxon’s gas exploration area. The villagers alleged that Exxon knew about the violence but failed to take reasonable steps to supervise the soldiers.
The case was part of a first wave of cases filed under the Alien Tort Statute and presented many complex novel legal issues—of jurisdiction, justiciability and political question, comity, extraterritoriality, due process, the collateral order doctrine, foreign affairs preemption, forum non-conveniens, and conflict of laws. Its journey through the U.S. court system took two trips to the D.C. Circuit Court of Appeals and one trip to the U.S. Supreme Court (where review was denied). The claims eventually proceeded in U.S. federal court under Indonesian law.
The plaintiffs’ team developed a strategy based on the transitory tort doctrine, which allows lawsuits to be brought in U.S. courts against defendants that are subject to U.S. jurisdiction, no matter where the injuries took place. The case pioneered the use of foreign tort law against multinational corporations and has provided a roadmap for litigators ever since.
“This case exemplifies everything the Trial Lawyer of the Year Award was created to recognize,” said Public Justice Chief Executive Officer Sharon McGowan. “At a time when powerful corporations spare no expense in the pursuit of shielding themselves from accountability, a team of tenacious and creative trial advocates proved that even deep pockets and deep ties to those who wield power cannot defy the rule of law and run roughshod over the rights of those who have been harmed. The lengths that this team went to in order to secure justice for their clients was extraordinary, and their inspiring victory is a reminder of the power of our profession to change lives and hold even the biggest of corporations responsible for unconscionable actions and atrocities.”
The case and its resolution received world-wide press coverage and has been the subject of dozens of law review articles. The comprehensive account of the atrocities in the trial court’s summary judgment opinion contributed to the historical record that was being compiled by the Truth and Reconciliation effort in Aceh, Indonesia. A video highlighting the case was debuted at the Public Justice Gala, and can be found on the organization’s YouTube channel. Videos highlighting the other two finalist cases for this year’s Award — in Re Capacitors Anti-Trust Litigation and Adkisson v. Jacobs Engineering Group, Inc. — are also now available.
We’re proud to recognize this year’s Award winners for their extraordinary legal advocacy and tenacious work on behalf of justice for all.
Team Members for John Doe I v. Exxon Mobil Corp. case:
- Agnieszka M. Fryszman – Cohen Milstein Sellers & Toll PLLC
- Paul L. Hoffman – Schonbrun Seplow Harris Hoffman & Zeldes, LLP
- Leslie Mitchell Kroeger – Cohen Milstein Sellers & Toll PLLC
- Kit A. Pierson – Cohen Milstein Sellers & Toll PLLC
- Terry Collingsworth – International Rights Advocates
- Anthony DiCaprio – DiCaprio Alternative Dispute Resolution
- Robert W. Cobbs – Cohen Milstein Sellers & Toll PLLC
- Llezlie Green – Georgetown Law (formerly of Cohen Milstein)
- Nicholas J. Jacques – Cohen Milstein Sellers & Toll PLLC
- Kathleen M. Konopka – Global Health Advocacy Incubator (formerly of Cohen Milstein)
- Brent W. Landau – The Public Interest Law Center (formerly of Cohen Milstein)
- Maureen McOwen – Consumer Financial Protection Bureau (formerly of Cohen Milstein)
- Allyson Ford Ouoba – American University Washington College of Law (formerly of Cohen Milstein)
- Marka Peterson – Strategic Organizing Center (formerly of Cohen Milstein)
- Poorad Razavi – Cohen Milstein Sellers & Toll PLLC
- Sharon K. Robertson – Cohen Milstein Sellers & Toll PLLC
- Thomas Saunders – U.S. Attorneys’ Office, District of Columbia (formerly of Cohen Milstein)
- Bede Sheppard – Human Rights Watch (formerly of Cohen Milstein)
- Rita Siemion – U.S. Senate Committee on the Judiciary (formerly of Cohen Milstein)
- Matiangai Sirleaf – University of Maryland Francis King Carey School of Law (formerly of Cohen Milstein)
- Nada S. Sulaiman – Cohen Milstein Sellers & Toll PLLC
A Utah federal judge has given his preliminary blessing to Pluralsight Inc.’s proposed $20 million settlement with a certified class of investors accusing the cloud-based and video training courses provider of securities fraud, according to an order issued Friday.
U.S. District Judge David Barlow granted preliminary approval of the deal, which would put to rest investors’ claim that Pluralsight and its top brass misled them about the company’s sales force productivity and future billings growth. In the short order, the judge found the deal fair, reasonable and adequate to the class and stayed the litigation pending a January settlement hearing.
Judge Barlow also signed off on the investors’ plan for notifying class members.
Under the deal, Pluralsight will pay $20 million in cash to potentially thousands of investors who purchased stock between Jan. 16, 2019, and July 31, 2019.
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Carol V. Gilden, a Cohen Milstein Sellers & Toll PLLC partner representing the investors, said in a statement Friday, “We are very pleased that the court granted preliminary approval of this settlement.”
“We look forward to bringing this hard-fought, certified class action to a close,” Gilden said.
Pluralsight didn’t immediately respond to a request for comment late Monday.
The investors are represented by Carol V. Gilden, Steven J. Toll and Jan E. Messerschmidt of Cohen Milstein Sellers & Toll PLLC and Keith M. Woodwell of Clyde Snow & Sessions PC.
The Summer 2024 issue of the Shareholder Advocate, our quarterly securities litigation and investor protection newsletter, features:
- Supreme Court to Weigh Cases that May Increase Hurdles for Securities Fraud Plaintiffs – Laura H. Posner and Alexandra Gray
- Delaware Enacts Fast-Tracked Bill that Critics Say Diminishes Shareholders’ Rights – Richard E. Lorant
- Using AI for Good: Artificial Intelligence in Shareholder Advocacy – Aaron J. Marks and Lyzette M. Wallace
- Jury Verdict Reached: Chiquita Liable for Murders of Colombian Terror Victims – Must Pay $38.3 Million – Kate Fitzgerald
- Fiduciary Focus: In an Uncertain World, Cybersecurity Risks Are Always Present – Luke Bierman
- A Team Profile of data engineer Tae Song
A “donut hole” baked into a rushed Delaware General Corporation Law amendment by state lawmakers earlier this year has tripped up most governance concessions that information technology company N-able Inc. granted to its lead investors, a Delaware vice chancellor ruled on Thursday.
Vice Chancellor J. Travis Laster — whose strikedown earlier this year of charter-trumping stockholder pacts in West Palm Beach Firefighters’ Pension Fund v. Moelis & Co prompted the DGCL changes — observed in his Thursday decision that the new state code revisions needlessly created a “stub timeline,” or donut hole, that will oblige courts to apply the unamended law to other disputes, including N-Able’s, over stockholder agreements completed or pending before Aug. 1.
N-Able was sued by a stockholder in March over an agreement containing nine covenants, provisions or requirements that grant broad rights to Silver Lake Group LLC and Thoma Bravo LLC, owners of 62% of N-Able’s stock. The deal covers broad, charter-level areas, including board composition and size, director nomination, removal and candidate support obligations, as well as incurring or retiring debt.
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The proposed class is represented by Thomas Curry, David Wales and Adam Warden of Saxena White PA, and Julie Goldsmith Reiser and Richard A. Speirs of Cohen Milstein Sellers & Toll PLLC.
An advocacy group that supports robust enforcement of antitrust laws has urged the Fourth Circuit to revive a case from former naval engineers accusing military shipbuilders of using secret “no-poach” agreements to avoid competing for workers.
The Committee to Support the Antitrust Laws filed an amicus brief on Tuesday arguing that a federal court in Virginia was wrong to toss the case after finding the claims fell outside the four-year statute of limitations for alleged antitrust violations.
The brief said that in order to reach that conclusion, the court had to ignore that the workers allege the companies had separate agreements to not hire employees from each other and to keep the pact secret.
“The district court’s order thwarts the policy justifications behind the fraudulent concealment doctrine,” the brief said. “Defendants’ making secret an agreement that is not ‘inherently deceptive’ is an affirmative act of concealment under the law of this circuit.”
A representative for the Committee to Support the Antitrust Laws told Law360 in a statement on Wednesday that the district court kept the naval engineers from having their day in court as a result of the companies concealing their agreement.
“The district court’s decision misinterpreted the law and imposed a burden on plaintiffs — who, pre-discovery, necessarily have limited access to the facts — that, if adopted, would limit the ability of private parties to bring antitrust lawsuits, especially for labor market cases, where it is particularly easy for defendants to hide their violations,” the statement said.
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The proposed class is represented by Elaine T. Byszewski, Shana E. Scarlett, Rio S. Pierce, Sarah Dupree, Steve W. Berman and Kevin K. Green of Hagens Berman Sobol Shapiro LLP, George F. Farah, Nicholas Jackson and Simon Wiener of Handley Farah & Anderson PLLC, Brent W. Johnson, Steven J. Toll, Robert W. Cobbs, Alison S. Deich, Zachary R. Glubiak and Sabrina S. Merold of Cohen Milstein Sellers & Toll PLLC, Brian D. Clark, Stephen J. Teti, Arielle S. Wagner and Eura Chang of Lockridge Grindal Nauen PLLP and Candice J. Enders and Julia R. McGrath of Berger Montague PC.